Minister of Justice v. Villanueva-Vera (a.k.a. Mayerova, a.k.a. Mayer) [Indexed as: Canada (Attorney General) v. Villanueva-Vera]
112 O.R. (3d) 709
2012 ONCA 657
Court of Appeal for Ontario,
Goudge, Watt and Hoy JJ.A.
October 2, 2012
Criminal law -- Extradition -- Surrender -- Applicant determined to be Convention refugee and subsequently becoming Canadian citizen -- Czech Republic seeking applicant's surrender -- Legal principles set out in decision of Supreme Court of Canada in Németh v. Canada not applying to minister's surrender decision as applicant's refugee status had ceased once she became Canadian citizen and applicant had full protection of Canadian laws -- Equality rights of Canadian citizens sought for extradition not violated because they had to meet greater burden than those with refugee status.
The applicant was born in Czechoslovakia, successfully claimed refugee status in Canada and subsequently became a Canadian citizen. She was convicted in the Czech Republic of attempted fraud, forgery and counterfeiting currency. The Czech authorities requested her extradition to serve her sentence. She was committed for surrender for extradition. The Minister of Justice ordered her unconditional surrender. Following the decision of the Supreme Court of Canada in Németh v. Canada, the applicant made additional submissions to the minister, arguing that Németh changed the law that the minister had to apply in her case. The minister confirmed his original decision. The applicant applied for judicial review of both ministerial decisions.
Held, the application should be dismissed.
Németh, which provides that a person's refugee status establishes that s. 44(1)(b) of the Extradition Act, S.C. 1999, c. 18 applies and that surrender must be refused unless the minister demonstrates on a balance of probabilities that those circumstances no longer exist and that the person is no longer entitled to protection, did not apply to the minister's surrender decision in this case as the applicant was a Canadian citizen. Her refugee status ceased when she acquired Canadian [page710] citizenship. As a citizen, she had the protection of Canadian laws, including the protection of s. 6(1) of the Canadian Charter of Rights and Freedoms. The equality rights of Canadian citizens sought for extradition were not violated because they had to meet a greater burden than those with refugee status, to whom Németh applies. The different treatment does not perpetuate any historical disadvantage suffered by, or stereotypical treatment of, Canadian citizens as a group.
APPLICATION for judicial review of the decision of the Minister of Justice ordering the applicant's surrender for extradition dated September 27, 2010.
Cases referred to
Németh v. Canada (Justice), [2010] 3 S.C.R. 281, [2010] S.C.J. No. 56, 2010 SCC 56, 221 C.R.R. (2d) 6, EYB 2010-182579, 408 N.R. 198, 11 Admin L.R. (5th) 159, 91 Imm. L.R. (3d) 165, 2010EXP-3890, J.E. 2010-2098, 263 C.C.C. (3d) 434, 328 D.L.R. (4th) 431, distd United States of America v. Cotroni, 1989 106 (SCC), [1989] 1 S.C.R. 1469, [1989] S.C.J. No. 56, 96 N.R. 321, J.E. 89-920, 23 Q.A.C. 182, 48 C.C.C. (3d) 193, 42 C.R.R. 101, 7 W.C.B. (2d) 301, apld Other cases referred to Canada (Attorney General) v. Pataki (2012), 112 O.R. (3d) 715, [2012] O.J. No. 4609, 2012 ONCA 656; Canada (Attorney General) v. Ward, 1993 105 (SCC), [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, 103 D.L.R. (4th) 1, 153 N.R. 321, J.E. 93-1264, 20 Imm. L.R. (2d) 85, 41 A.C.W.S. (3d) 393; D.L. (D.R.C.) v. The Entry Clearance Officer Pretoria; Zn. (Afghanistan) v. The Entry Clearance Officer Karachi, [2008] EWCA Civ 1420, [2008] All E.R. (D) 209 (C.A.); Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761, [2008] S.C.J. No. 23, 2008 SCC 23, EYB 2008-132986, J.E. 2008-970, 230 C.C.C. (3d) 449, 373 N.R. 339, 292 D.L.R. (4th) 193, 236 O.A.C. 371, 56 C.R. (6th) 336, 171 C.R.R. (2d) 280, 72 Admin. L.R. (4th) 30; United States of Mexico v. Hurley (1997), 1997 3355 (ON CA), 35 O.R. (3d) 481, [1997] O.J. No. 2487, 101 O.A.C. 121, 116 C.C.C. (3d) 414, 8 C.R. (5th) 354, 45 C.R.R. (2d) 73, 35 W.C.B. (2d) 222 (C.A.)
Statutes referred to
Canadian Charter of Rights and Freedoms, s. 6(1) Extradition Act, S.C. 1999, c. 18, s. 44(1) Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 108(1)(c)
Treaties and conventions referred to
Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, art. 1, C(3) Vienna Convention on Consular Relations, Can. T.S. 1974 No. 25
Paul Slansky, for applicant. Moiz Rahman and Monika Rahman, for respondent.
[1] BY THE COURT: -- Maria Villanueva Vera was born in Czechoslovakia on December 13, 1953. She came to Canada over ten years ago and claimed refugee status on the basis of persecution she faced in the Czech Republic. In August 2001, Canada declared her to be a Convention refugee.
[2] On June 8, 2006, Ms. Villanueva Vera was convicted in the Czech Republic of attempted fraud, forgery and counterfeiting [page711] currency. Although she was not present at her trial, she was represented by counsel. She was sentenced to five years' imprisonment, which was reduced on appeal to three years.
[3] In October 2006, Ms. Villanueva Vera became a Canadian citizen. She is a dual citizen of Canada and the Czech Republic.
[4] On April 3, 2009, the Czech authorities requested extradition of Ms. Villanueva Vera for the purpose of enforcing her three-year term of imprisonment.
[5] On September 10, 2009, Ms. Villanueva Vera was arrested in Canada and, after a hearing in the Superior Court of Justice, she was committed to surrender for extradition on January 13, 2010. She did not appeal this committal order.
[6] On September 27, 2010, the Minister of Justice ordered her unconditional surrender for extradition. He rejected her arguments that he should exercise his discretion against surrender because of her health and the inadequate medical treatment she would receive in Czech Republic. The minister was satisfied that, should Ms. Villanueva Vera be extradited to the Czech Republic, she could get the medical assistance she might need.
[7] The minister also rejected Ms. Villanueva Vera's argument that her surrender should be refused because the 2001 finding that she was a Convention refugee meant she had a well-founded fear of persecution if she were extradited. In doing so, the minister considered whether he was required by s. 44(1) of the Extradition Act, S.C. 1999, c. 18 (the "Act") to refuse to make the surrender order. That section reads:
44(1) The Minister shall refuse to make a surrender order if the Minister is satisfied that (a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; or (b) the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person's position may be prejudiced for any of those reasons.
[8] The minister applied the principles in United States of Mexico v. Hurley (1997), 1997 3355 (ON CA), 35 O.R. (3d) 481, [1997] O.J. No. 2487 (C.A.) and found that she had provided him with no evidence sufficient to demonstrate that she would, in fact, be persecuted if extradited. He therefore concluded that s. 44(1) did not preclude her surrender.
[9] Following the decision in Németh v. Canada (Justice), [2010] 3 S.C.R. 281, [2010] S.C.J. No. 56, 2010 SCC 56, Ms. Villanueva Vera made additional submissions to the minister. She reiterated her earlier position, but also argued that Németh [page712] changed the law that the minister must apply in her case, and that having once been found to have refugee status she could only be extradited if the minister concluded on a balance of probabilities that the circumstances facing her had changed so that she no longer required the protection of refugee status. The minister disagreed with this view of Németh and confirmed his original decision to surrender Ms. Villanueva Vera for extradition.
[10] Ms. Villanueva Vera now seeks judicial review of both ministerial decisions.
Analysis
[11] We turn first to Ms. Villanueva Vera's principal argument, namely, that Németh changed the law guiding the minister's decision whether to surrender her for extradition. The premise for this argument, with which we agree, is that the minister must exercise his discretion according to proper legal principles. If he is guided by erroneous legal principles, he errs.
[12] Németh addresses the minister's decision concerning the surrender for extradition of an individual with refugee status, where that status has not ceased or been revoked at the time the surrender decision is made. The legal principles it sets out to guide the minister's decision are confined to this circumstance, as we explain in Canada (Attorney General) v. Pataki (2012), 112 O.R. (3d) 715, [2012] O.J. No. 4609, 2012 ONCA 656, issued concurrently with these reasons.
[13] In Pataki, the appellant was a Canadian citizen who had never been granted refugee status by Canada. We found that the minister did not err in finding that Németh did not change the legal principles that must guide his decision. The question in this case is whether the result is any different, given that at the time of the surrender decision, Ms. Villanueva Vera was a Canadian citizen, but prior to becoming a citizen, she had been accorded refugee status by Canada.
[14] In our view, the result is no different. The legal principles in Németh do not apply to the minister's surrender decision in this case.
[15] In August 2001, Ms. Villanueva Vera was granted refugee status by Canada. She was at that time a citizen of the Czech Republic. She became a Canadian citizen in October 2006.
[16] As a citizen, Ms. Villanueva Vera has the protection of Canadian laws, including the protection of s. 6(1) of the Canadian Charter of Rights and Freedoms granting her the right to re-enter and remain in Canada. If surrendered for extradition, as a Canadian citizen, she would have the right to [page713] access Canadian consular services in the Czech Republic pursuant to the Vienna Convention on Consular Relations, Can. T.S. 1974 No. 25. In short, as of October 2006, Ms. Villanueva Vera acquired a new nationality and enjoyed the protection of the country of her new nationality.
[17] The Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, to which Canada has bound itself, provides that it ceases to apply to an individual who "has acquired a new nationality, and enjoys the protection of the country of his new nationality" (art. 1, C(3)).
[18] The Immigration and Refugee Protection Act, S.C. 2001, c. 27 is to the same effect. Section 108(1)(c) reads:
108(1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or person in need of protection, in any of the following circumstances: @7 . . . . . (c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality.
[19] The underlying rationale for according refugee status is to serve as a backup to the protection the individual expects from the state of which he or she is a national. It is meant to come into play only where that protection is unavailable: Canada (Attorney General) v. Ward, 1993 105 (SCC), [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, at para. 9. However, when the individual acquires a new nationality and enjoys the protection of the country of that new nationality, the rationale for refugee status disappears.
[20] The Court of Appeal of England and Wales came to just that conclusion in D.L. (D.R.C.) v. The Entry Clearance Officer Pretoria; Zn. (Afghanistan) v. The Entry Clearance Officer Karachi, [2008] EWCA Civ 1420, [2008] All E.R. (D) 209 (C.A.). Although the Supreme Court of the United Kingdom overturned this judgment, it expressly declined to address the issue of refugee status ending upon acquiring citizenship. The Court of Appeal said this, at paras. 29-31:
In my judgment it is plain that a recognised refugee who thereafter obtains the citizenship of his host country, whose protection he then enjoys, loses his refugee status. Article 1C(3) of the Refugee Convention could not be clearer.
Moreover this conclusion, in my opinion, is in line with the scope and purpose of the law's protection of refugees. A passage in the UNHCR Handbook dealing with Article 1C(3) of the Convention includes this:
As in the case of the re-acquisition of nationality, this third cessation clause derives from the principle that a person who enjoys national protection is not in need of international protection. [page714]
The nationality that the refugee acquires is usually that of the country of his residence. A refugee living in one country may, however, in certain cases, acquire the nationality of another country. If he does so, his refugee status will also cease, provided that the new nationality also carries the protection of the country of his new nationality.
The following passage from Professor Hathaway's book, The Rights of Refugees under International Law (Cambridge University Press, 2005), at p. 916 is instructive. It fills out the point made at paragraph 129 of the Handbook:
If a refugee opts to accept an offer of citizenship there, with entitlement fully to participate in all aspects of that state's public life, his or her need for the surrogate protection of refugee law comes to an end. There is no need for surrogate protection in such a case, as the refugee is able and entitled to benefit from the protection of his or her new country of nationality.
[21] We therefore conclude that when Ms. Villanueva Vera acquired her Canadian citizenship, the justification for her being accorded refugee status disappeared. From Canada's perspective, both as a matter of international and domestic law, her refugee status ceased.
[22] Since at the time of her surrender decision her refugee status had ceased, the minister was correct to conclude that the legal principles recited in Németh did not apply.
[23] It may be that an individual who was once accorded refugee status but has since acquired Canadian citizenship may be able to rely on that in seeking to discharge the burden of proof on him or her. If, for example, the timeline from refugee status to citizenship to surrender decision is short, it may be easier for the individual to demonstrate that conditions at the time of the surrender decision have not changed from those that warranted protection as a refugee, thus helping to demonstrate that he or she will be persecuted if surrendered. However, Ms. Villanueva Vera does not advance this argument. Nor could she do so, given how long ago she acquired refugee status.
[24] In summary, we reject Ms. Villanueva Vera's primary argument. The minister did not err in declining to apply Németh in making the surrender decision in her case.
[25] Ms. Villanueva Vera advances two other legal arguments which can readily be disposed of. First, she says that the denial of protection to a former refugee, now a Canadian citizen, is not a reasonable limit on her s. 6(1) Charter right to remain in Canada. We do not agree. United States of America v. Cotroni, 1989 106 (SCC), [1989] 1 S.C.R. 1469, [1989] S.C.J. No. 56 held that extradition does constitute a reasonable limit on the s. 6(1) rights of individuals sought for surrender. [page715]
[26] Second, Ms. Villanueva Vera appears to argue that the equality rights of citizens sought for extradition are violated because they must meet a greater burden than those with refugee status, to whom Németh applies. We see no merit in this suggestion. This different treatment can hardly be said to perpetuate any historical disadvantage suffered by, or stereotypical treatment of, Canadian citizens as a group. Indeed, in this context, the rights accompanying citizenship are the antithesis of disadvantage.
[27] Ms. Villanueva Vera's final argument is that the minister's decision to surrender her is unreasonable in light of her health and her need for medical care. We do not agree. The minister's decision must be accorded significant deference: Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761, [2008] S.C.J. No. 23, 2008 SCC 23.
[28] The minister took into account Ms. Villanueva Vera's health, the basis for its treatment and the availability of adequate health care in the Czech Republic. His surrender decision in these circumstances cannot be said to be unreasonable.
[29] For all these reasons, Ms. Villanueva Vera's application for judicial review must be dismissed.
Application dismissed.